Opinion Number. 866



Key Legislation

DEFENCE ACT 1903, ss. 4, 138 (3): AUSTRALIAN MILITARY REGULATIONS 1916, reg. 788

The Secretary, Department of Defence

The following minute has been submitted to me for advice:

Section 138 (3) of the Defence Act reads as follows:

Persons who are students at a Theological College as defined by the regulations, or theological students as prescribed, may, while they remain such students, on application be exempted by any prescribed authority from the prescribed training, but shall on ceasing to be such students undergo such equivalent training as prescribed, unless exempted by some provision of this Act.

  1. In pursuance of this section Australian Military Regulation 788 has been amended to provide for the definition of 'Theological College' and 'theological students' and for the exemption of persons defined as such students from undergoing training under Part XII of the Act.
  2. No provision is however made for the exemption of persons who complete their theological course and become ministers of religion. This matter was previously submitted to the Minister and it was approved by him that such persons should not be required to train under Part XII of the Act.
  3. Section 138 (3) makes provision for a regulation exempting ministers of religion from undergoing training by the use of the words 'unless exempted by some provision of this Act'.
  4. In section 4 of the Act the words 'this Act' are defined to include all regulations under the Act.

    Therefore a valid regulation can be framed exempting ministers of religion from training, i.e. those ministers who have been 'theological students' as prescribed.

    1. It is recommended therefore that the following new regulation 788B be inserted in the Australian Military Regulations:
    2. 788B(1)

      1. Ministers of religion shall be exempt from the training required under Part XII of the Act so long as they continue to be ministers of religion.
      2. For the purpose of this regulation the term 'minister of religion' shall be taken to mean any person who, after having been a 'theological student' or a 'student at a Theological College' as defined by regulation 788, by virtue of ordination or similar ceremony, is officially empowered to exercise spiritual functions in a religious denomination.
      3. Applications for exemption from training under this regulation shall be made in writing to the Area Officer who shall transmit the same to the District Commandant for his approval.
      4. The District Commandant may require a certificate in writing from the head of the religious denomination before granting exemption.
    3. The definition of minister of religion is taken from an opinion of the Solicitor-General dated 11 October 1916(1) and it is recommended that this draft regulation be submitted for his consideration.

The concluding words of sub-section 138 (3) 'unless exempted by some provision of this Act' are being relied upon as authorising the making of a regulation exempting ministers of religion (i.e. persons who have ceased to be theological students) from training under Part XII.

It is true that by section 4 the words 'this Act' are denned as including, unless the contrary intention appears, regulations made under the Act. But this means regulations validly made under authority conferred by the Act. I think it clear, on the interpretation of section 138 (3), that the words 'unless exempted by some provision of this Act' do not confer a power to make regulations, but merely refer to provisions of the Act (including any regulations made under the authority of the Act). I do not see any authority elsewhere in the Act to make the proposed regulation.

I am therefore of opinion that the proposed regulation is ultra vires the Act, and would, if made, be invalid.

[Vol. 15, p. 464]

(1)Opinion No. 741.